Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs June 23, 2015
Appeal from the Criminal Court for McMinn County Nos. 12-CR-165, 12-CR-325 Andrew Mark Freiberg, Judge
Richard Hughes, District Public Defender; Steve Morgan (on appeal) and Kevin Miller and Abby Burke (at hearing), Assistant Public Defenders, for the appellant, Plaise Edward Spangler.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; R. Steven Bebb, District Attorney General; and Heather Higginbotham, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.
ALAN E. GLENN, JUDGE
On June 3, 2013, the defendant entered an Alford plea to possession of marijuana, possession of methamphetamine, and promoting the manufacture of methamphetamine in exchange for an effective sentence of four years in the Department of Correction, suspended to supervised probation. Among the conditions of his probation were that he submit to random drug tests and pay a minimum of $75 per month toward his court costs and fees.
On August 6, 2014, the defendant's probation officer filed the probation violation report at issue in this case, which alleged that the defendant had violated his probation by refusing to submit to a random drug screen and failing to make any payments toward his $7, 804.25 in costs and fees.
At the September 5, 2014 revocation hearing, J.M. Creech, the defendant's probation officer, testified that he filed his first probation violation warrant on the defendant on April 14, 2014, based on the defendant's having failed a drug test and having admitted to using marijuana. He said the defendant "was referred to Ms. Shaw for a drug assessment, and then missed three appointments at Hiwassee Mental Health and never reported back to probation after failing his drug screen in October." The defendant was convicted of that violation, revoked from probation, and reinstated to probation on May 16, 2014. He testified the instant probation violation warrant was based on the defendant's having refused to submit a urine sample when he reported to his office on July 30, 2014, and for having failed to make any payments toward his $7, 804.25 in court costs and fees.
Mr. Creech testified that the defendant told him, when he failed to produce the urine sample, that he was suffering from a kidney infection. He said he allowed the defendant to go to the lobby to drink some water but told him not to leave the building and that leaving would result in an automatic failure. The defendant left anyway but came back. Mr. Creech was still going to allow the defendant to provide a specimen, but the defendant left a second time and did not return.
On cross-examination, Mr. Creech testified that he and the defendant went into the drug screen room "a few times" and that the defendant informed him he was attempting to produce a specimen. The defendant passed gas at one point, but Mr. Creech did not observe any fecal matter. Mr. Creech conceded that, to his knowledge, the defendant had no source of income during the course of his probation. He also acknowledged that the defendant, who admitted using marijuana when he previously failed the drug screen, never admitted using any intoxicants on July 30.
The defendant testified that during the course of his probation he lived with his mother, was unemployed without any source of income, and relied on his mother for all his needs. He said he was willing to provide a urine specimen on July 30 but was physically unable to do so. At the time, he believed he had a kidney infection, but a few days later he learned he had suffered "some kind of spider bite that turned into MRSA or something like that, staph, " which "brought [him] to [his] knees." When he was unable to produce a urine sample, he was told that he could go to the parking lot to get a twenty-ounce water bottle instead of "sitting at that water fountain and . . . drinking water." He, therefore, went outside, got his water bottle, drank five bottles of water, and then came back inside and tried again. The first time he tried, he passed gas, and the second time, he defecated on himself. At that point, he felt humiliated, became angry, and left.
The defendant testified that he telephoned the probation supervisor on Monday morning, who told him to set up another appointment with Mr. Creech to provide his urine sample. He then telephoned Mr. Creech, who told him to call back on August 11. When he called that day, however, Mr. Creech told him to turn himself in. The defendant insisted that he tried to produce a specimen on July 30 and that had he been able to do so, he would have passed the drug test. The defendant admitted he had a drug problem, testifying that he "like[d] weed, " which was "like a nerve medication" to him. He ...